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I. Introduction: History & Background

I. Introduction: History & Background

In May, 2010, Wisconsin enacted a shield law protecting confidential sources and newsgathering materials. The act provides journalists with an absolute privilege to withhold confidential source information and a qualified privilege to protect from disclosure of other newsgathering information. Wis. Stat. § 885.14. There have been no state court decisions interpreting the shield law.

Journalists in Wisconsin have a qualified privilege against testifying in both civil and criminal proceedings. This court-recognized privilege, based on both the state and federal constitutions, applies regardless of whether the journalist obtained the information from a confidential or non-confidential source.

I. Introduction: History & Background

Note: In 2011, West Virginia enacted a statutory shield law providing strong protection for reporters to refuse to disclose the identity of confidential sources, and documents or other information that could identify confidential sources. W. Va. Code § 57-3-10.

Generally speaking, the status of the reporter's privilege in West Virginia is strong. Although the contours of the privilege are not as developed as they are through caselaw in other states, and there is no statutory shield law, the Supreme Court of Appeals of West Virginia has fashioned a strong privilege to protect reporters, especially in civil cases. Because of the strength of the privilege, incidences of reporters being jailed or fined over privilege issues have been exceedingly rare in West Virginia.

I. Introduction: History & Background

Kansas adopted a shield law in April 2010. See Kan. Stat. Ann. § 60-480 - 60-485 (2017). The case law governing actions in the state courts is poorly developed. In the federal courts, the decisions of the United States Court of Appeals for the Tenth Circuit control. These decisions recognize and apply a relatively strong qualified privilege.

I. Introduction: History & Background

In general, the Third Circuit historically has afforded broad protection to journalists against compelled disclosure of their sources or the fruits of their newsgathering. Indeed, at least so far as reported opinions reveal, in civil actions involving subpoenas to non-party reporters, invocation of the First Amendment-based qualified reporter's privilege is almost always upheld.

I. Introduction: History & Background

The District of Columbia has codified the journalist's privilege against disclosing sources, news, and information. The District of Columbia enacted the Free Flow of Information Act, D.C. Code § 16-4701-4704 in 1992 largely in response to the D.C. Court of Appeals's decision in Wheeler v. Goulart, 593 A.2d 173 (D.C. 1991), which upheld the lower court's order holding a Washington Post reporter in civil contempt for refusing to answer questions regarding sources. See generally Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994).

I. Introduction: History & Background

Journalists in Minnesota have a strong qualified privilege for their confidential sources and unpublished information. A state statutory privilege has existed since 1973, and was amended in 1998 to make clear that it applies to unpublished information as well as to confidential sources. Federal courts in the state recognize a qualified privilege under the First Amendment.

I. Introduction: History & Background

It has been said that the Rhode Island Shield Law is a "suit of journalistic armor," effective so long as the silver bullets of the statute's few exceptions do not apply. It was originally passed in the early 1970's amidst mounting national concerns for safeguarding journalistic privilege and freedom of the press.

I. Introduction: History & Background

The Fourth Circuit has been less aggressive than many of its counterparts in enunciating a reporter's privilege. The Court first explored a testimonial privilege in 1976 but indicated that to invoke the privilege, a journalist must claim confidentiality of the information sought or vindictiveness on the part of the questioning party. United States v. Steelhammer, 539 F.2d 273 (4th Cir. 1976), rev'd en banc, 561 F.2d 539 (4th Cir. 1977). In LaRouche v. Nat'l Broadcasting Co., Inc., 780 F.2d 1134, 12 Media L. Rep. 1585 (4th Cir. 1986), cert. denied, 479 U.S.

I. Introduction: History & Background

Delaware has a long common law history of respecting journalistic privilege. Although a reporter may only refuse to testify by claiming a privilege expressly granted under the Reporters' Privilege Act (see D.R.E., Rule 513), those privileges both originated in and continue to be shaped by case law. Both common law and statutory law presume that once a reporter's privilege has been asserted, it is valid unless and until the party seeking the information proves that the privilege should not apply. The burden of overcoming the presumption is difficult.

I. Introduction: History & Background

Missouri has not adopted a shield statute for reporters, but a proposed law is working its way through the Missouri legislature in the spring, 2007, session, so it is possible it will pass and by August, 2007, Missouri will join the states that have a qualified privilege. This will be a significant improvement in this area of the law for this state, inasmuch as the law prior to this time has been murky and not necessarily consistent throughout the state.